MICHIGAN CENT. R. CO. v. MAJKZRAK, 200 F. 936

KOHLSAAT, Circuit Judge (after stating the facts as above). Both counsel agree that on the trial the main question in controversy was: “Did defendant’s foreman order or direct the plaintiff to work upon this buzz saw?” Plaintiff, who had the burden of proof, testified that he was so directed, as above stated. In his prima facie evidence, plaintiff was allowed ■ to introduce the testimony of the five witnesses as above set out, for the purpose of corroborating plaintiff’s testimony.

In defense, defendant, among other evidence, introduced the testimony above referred to, controverting the statements of the five witnesses. What error might have been predicated upon the ruling of the court on that point, had defendant rested its case, so far as that' ruling was concerned, upon its exceptions taken thereto, need not be here stated.

The record taken as a whole, without regard to the sequence of the introduction of evidence, clearly shows a submission to the jury by both parties of the question whether other carpenters employed by defendant were on prior occasions ordered to operate the saw when its use was required. Neither party was limited as to the evidence upon that point as bearing upon plaintiff’s statement that he was ordered to operate the saw and was not a volunteer.

It was' competent for plaintiff to controvert the testimony of the foreman and oilier workmen to the effect that the saw was only operated by skilled men who were detailed for that purpose. We do not deem that assignment of error well founded. With regard to the matters comprehended in the second assignment, it appears from the record:

(1) That the saw was in good order and full view; (2) that plaintiff was a man 26 years of age, fairly mature in judgment, and possessed of such experience as would come to an ordinarily intelligent man after five years’ service as a carpenter engaged in construction work in and about car repairing; (3) that he had knowledge sufficient to enable him to switch the saw into action, but had had no experience in handling or operating such a saw; (4) that he was standing in a place of safety when the board which he ■was sawing began to jump up and down, and left it when he moved to the side of the saw frame in an attempt to steady it; and (5) that he did not appreciate the danger of taking hold of the jumping plank, nor the extent to which the saw teeth became invisible under the swift revolution of the saw.

All these facts the jury were at liberty to find from the evidence, as well as the alleged fact that plaintiff was ordered to work with the saw. There is nothing in the record to show that defendant took any steps to advise plaintiff of the danger incurred in the use of the saw, nor does it appear that its use was one of the risks assumed by him, or that the danger was obvious as danger to liis mind.

It is a general rule of law that a master may not acquit himself of negligence without notifying an employé of the risks assumed in bis performance of his duties, if they are not patent — especially if he be unskilled. Reed v. Stockmeyer, 74 Fed. 186, 20 C. C. A. 381; Felton v. Girardy, 104 Fed. 127, 43 C. C. A. 439; Mountain Copper Co. v. Pierce, 136 Fed. 150, 69 C. C. A. 148; Wright v. Stanley, 119 Fed. 330, 56 C. C. A. 234. Kven though he sees and knows the physical conditions, he may not understand them. There are a number of cases dealing with the operation of saws. They are held to be dangerous devices.

Their working in contact with an object, as wood, is held to constitute an obscure danger in Hanson, v. Ludlow Mfg. Co., 162 Mass. 187, 38 N. E. 363. “The particular clanger caused by the tendency of a board when warped to spring hack is not, as a matter of law, obvious to an inexperienced servant.” Wheeler v. Wason Mfg. Co., 335 Mass. 204. In Chilson v. Lansing Wagon Works, 128 Mich. 43, 87 N.

W. 79, it is said: “It is for the jury to say whether a servant having no experience in the use of a saw of a peculiar construction, dangerous because pieces of timber were liable to become wedged between the saws and thus throw the operator’s hand upon them, should have been instructed as to this peculiarity.” It was held in Nelson Mfg. Co. v. Stolzenburg, 59 Ill. App. 634, that: a servant might not see the bluish circle made by the teeth of a rapidly revolving saw, and should have been warned. The danger of saws is further dealt with in Jarvis v. Coes Wrench Co., 177 Mass. 170, 58 N. E. 587; Egan v.

Sawyer & Lumber Co., 94 Wis. 137, 68 N. W. 756; Smith v. Irwin, 51 N. J. Law, 508, 18 Atl. 852, 14 Am. St. Rep. 699. We find no reversible error in the judgment, and it is therefore affirmed.